Poslední úprava: Mgr. Eva Slavíčková (06.04.2017)
Předmět bude vyučován Peterem R. Kolkerem, advokátem z Washingtonu (D. C.) a předním odborníkem na ADR
Předmět bude vyučován blokově v těchto termínech:
Úterý 2. 5. 2017 od 10:00 do 11:30 v učebně č. 303
Středa 3. 5. 2017 od 12:00 do 13:30 v učebně č. 303
Čtvrtek 4. 5. 2017 od 10:00 do 11:30 v učebně č. 303
Úterý 9. 5. 2017 od 10:00 do 11:30 v učebně č. 303
Středa 10. 5. 2017 od 16:00 do 17:30 v učebně č. 213
Čtvrtek 11. 5. 2017 od 10:00 do 11:30 v učebně č. 303
Tento předmět je v roce 2017 nabízen na základě finanční podpory od Fulbrightovy komise. Vyučujícím bude
americký odborník na alternativní metody řešení sporů advokát Peter R. Kolker.
Předmět je organizován na bázi blokové výuky v letním semestru a neplánuje se v dalších letech jeho pravidelné
Základní téma představené během kurzu bude soudní řízení před soudy USA a ADR techniky. Další část kurzu
bude věnována právním otázkám transparentnosti postupů ve veřejném sektoru i v rámci rozhodování sporů.
Za obsah kurzu bude odpovídat vyučující společně s garantem předmětu za PF UK Prof. JUDr. Milanem
Výuka probíhá výhradně v anglickém jazyce, je proto nutné, aby studenti, kteří si předmět zapíší, ovládali tento
jazyk na vysoké úrovni jak při mluveném projevu (očekává se velmi interaktivní systém výuky ze strany vyučujícího
- především metodou tzv. case study, diskuze, mock trialu), tak písmem (závěrečnou studijní povinností je esej v
rozsahu 5-8 stran a bude hodnocena přímo vyučujícím z USA).
V tomto směru má předmět sloužit jako jedna z možností přípravy studentů pro jejich případný výjezd ke studiu v
anglickém jazyce na zahraničních univerzitách (zejména ve Velká Británii a USA).
Hlavním cílem předmětu American Judicial System and Alternative Dispute Resolution je umožnit studentům PF
UK získat základní přehled o metodách řešení sporů v USA a získat rovněž základní schopnost komparativního
přístupu k právu napříč kontinentálním i anglosaským právním systémem. Je proto doporučeno, aby se kurzu
účastnili především studenti z vyšších ročníků (třetí ročník a výše), kteří již mají vyšší znalost právního řádu ČR
(včetně procesněprávních institutů) a mohli tak svou účast v tomto kurzu maximálně zúročit.
Poslední úprava: Mgr. Miroslav Sojka (04.04.2017)
Esej na zadané téma v rozsahu cca. 5-8 stran.
Poslední úprava: Mgr. Miroslav Sojka (04.04.2017)
SYLLABUS FOR 2 MAY - 12 MAY, 2017 ©
CHARES UNIVERSITY LAW FACULTY
AMERICAN JUDICIAL SYSTEM MEETS THE CZECH REPUBLIC
LEGAL SYSTEM - METHODS OF RESOLVING DISPUTES;
ANTI-CORRUPTION MEASURES TO ASSURE GOVERNMENTAL INTEGRITY
INSTRUCTOR: PETER R. KOLKER (USA)
General Topics this course will explore:
When Czech business people do business in the U.S., it is important that they understand how the American judicial system operates and how business disputes can be resolved. This two-week course will discuss two different, but related topics:
a) Commerce between the citizens of two countries -- the Czech Republic and the U.S. -- will inevitably involve disputes relating to the business deals. In the U.S., these disputes can be resolved by (1) a law case filed in court, (2) mediation or (3) by arbitration based on international treaties. We will consider these alternative dispute-resolution methods, their costs and the fairness of each, reviewing the U.S. procedures and methods and comparing them to the international arbitration system. We will also discuss the difficulty of collecting a US judgment in the Czech Republic; and
b) We will also examine the importance of transparency in government, because the perception of fairness is critical to a society that relies on the legal system to resolve disputes. Avoiding corruption and assuring that decisions are based on merit, not favoritism or improper considerations, is of critical importance to all participants. Therefore, we will examine how transparency in the administration of justice in the U.S. and in the administration of government programs has helped promote the rule of law and the fairness of outcomes to all participants.
Class methods and expectations:
The class will encourage student participation in discussion. We will examine how the U.S. courts and arbitration resolve cases. Then, during Week I, we will develop an actual business case, with students taking different sides to explore how a contract dispute can best be resolved, either by the court (litigation), by arbitration or by mediation. Actual evidence will be provided to the students for use in the discussion. Students will attempt to persuade each other of which is the better method.
During Week II, we will explore how corruption can be exposed and eliminated or reduced. Examples of techniques used in the U.S. that have resulted in public officials having to change their performance will be explored. These methods come with a price, however, and we will examine what those “costs” (financial and personal) are.
Class participants will submit a final paper of about five pages on a topic to be provided by the instructor and will receive a numerical grade for course credit.
TOPIC A - Week of May 2 - May 4
I. Class 1 - Overview of the American Judicial System for civil disputes
Why is this important to a Czech business person? What are the main elements?
A. Basic structure of American Judicial system:
• Federal and State systems in the U.S. (States and Federal Government with separate laws and court systems)
• How both systems can apply, sometimes at the same time
• When the two systems differ, the U. S. Federal system prevails
o Some current issues arising from our recent election
• U.S. Constitution
• Statutes - US. laws and laws of the 50 states
• Administrative Regulations, binding on those doing business with US
• Judicial Decisions (precedents binding on future cases)
B. Contrast to Czech Republic and most civil law countries:
• Where C.R. and other European civil law countries apply specific laws and rules, American system relies on both statutes and interpretations of those statutes which control decisions of later cases.
C. Features of Openness and Transparency in American System:
• Statutes and rules requiring openness for important organizations: e.g., corporations; charities; educational institutions, labor organizations
• How the publication of decisions and explanation of rulings allows business people to adjust their conduct by anticipating court rulings.
• Openness in dispute resolution: methods for assuring that all evidence concerning the dispute is made available to all participants, requiring participants to produce their "good" and "bad" evidence.
• Public proceedings; records of all court cases with limited use of non-public court filings.
• Newspapers, TV, internet blogs have full access to court records and are completely available to all citizens.
• How the free press in the U.S. ensures accountability and can bring about change.
D. Effect of U.S. Laws on those doing business with the US from abroad:
• How can U.S. laws affect a business person manufacturing his product in the Czech Republic but selling them in the US?
• What rules apply to Czech companies doing business with US Government?
• Can the U.S. regulate conduct that takes place entirely in the Czech Republic, if it has an effect in the U.S.?
II. Class 2 - Resolving Disputes using the U.S. Courts
A. Overview of Common Disputes between Czech and U.S. Companies
• What we mean by “disputes”; how do they arise?
• Disagreement on contract terms
• Failure (or inability) to perform a contract
• Product is delivered but breaks down or causes injury
• Purchaser fails to pay for what he received
• Competitor claims a violation of its intellectual property
B. Common methods of resolving disputes in the U.S.:
• “Litigation” - Judicial Resolution (in Court); including settlements of filed cases
• Arbitration: differences between Arbitration in the U.S. and International Arbitration
C. Selection of Dispute Resolution Method
• Contractual provisions often designate the method of dispute resolution
• Which is preferable: as a Czech business person, which would you prefer to have in your agreement? Why?
D. Dispute Resolution - in U.S. Courts
• Overview of how law cases are processed in the U.S.
• Juries or Judges: compare to Czech Republic: judges only
• Role and perception of judges in the U.S. and contrast to the Czech Republic
• Trials can be with a jury, unless there has been an agreement not to have a jury.
• Who sits on a jury in the U.S.? Where do jurors comes from? How do they function? What do they decide? What is the role of a judge if there is a jury?
• Most importantly, how does a jury affect the way a case is presented and the likely outcome? If you are a small company in the Czech Republic, do you want a jury if your case is heard in the U.S.?
• How long does it take for a case to get to a trial in the U.S.?
E. Appeals in the U.S.
• What is an appeal in the U.S.: Normally, it is not a second trial
• Review of legal issues only, not the facts.
• But there are some exceptions
• What is the process for an appeal?
• How expensive?
• How long does it take?
• Could it result in a new trial?
F. What you must know about Pretrial Discovery in Civil Cases if you do business with U.S. companies.
• Litigation in the U.S. provides each side the opportunity to learn about the other side’s case before trial.
• Obtaining Documents from the other side - emails, correspondence, notes and memos.
• Obligation to keep your documents and emails (the good and the bad) once litigation is expected.
• Depositions: taking evidence from witnesses outside of the courtroom - how does it work, and what is good and bad about it?
• Using documents obtained in discovery during the deposition.
• What use is made of the deposition after it has been taken?
• Requiring questions to be answered in writing for use at the trial
• Costs of these procedures. Who pays for them and how expensive?
III. Class 3: Mediation or Arbitration Instead of Court: Which is best for a Czech Company in Dispute with a U.S. company?
• Defined as an effort to resolve a dispute without a formal process, to reach an agreement quickly and at lower cost than through a formal process
• Typically, a non-binding method of trying to reach agreement, usually led by a neutral, third party.
• Increasingly used in the U.S. to end a case without trial but based on a prediction of how the trial would proceed.
• What are the steps that assure neutrality and integrity of the mediator?
• How is the mediator selected? From an organization or list?
• What authority does the mediator have? Can he or she force a resolution?
• If not, why do mediation? If so, how does it differ from Court?
• What if the mediation does not resolve the dispute: what use can be made of the mediation discussions? Of the mediator’s recommendations?
• Does it work? Why?
• Is it enforceable?
• When is it done in process of dispute resolution?
B. Arbitration in the U.S.
• What does Arbitration mean? How does it work in U.S. cases?
• When and why is arbitration selected as the method of resolving disputes?
• Which law applies?
• What rules apply to the arbitration?
• Proceeds on a “streamlined” (accelerated) basis:
• Enforced through the courts, but very limited right of appeal relating to improper activities of arbitrators: how does that work?
C. International Arbitration compared to U.S. Arbitration
• How is the location selected; does it make a difference?
• What law applies? U.S. or Czech or another country?
• Comparing cost and time to resolve dispute
D. Difficulties of Collecting a Foreign Judgment compared to Arbitration Award
• Can a U.S. Judgment be enforced in the Czech Republic?
• Can a Czech Judgment be enforced in the U.S.?
• How enforceable is an arbitration award?
• Answers to these questions affect value of litigation or of arbitration.
E. Class Participation: Arbitration or Litigation in the U.S.: Which is better; Why?
I will provide a realistic - but not real - problem to the class; we will divide the class in half and debate whether arbitration or litigation is a better way to solve this problem.
• A contract and several emails and news articles will be provided. Students will use this material to show how the case should be decided if litigation is used or if arbitration is used.
• Class will decide on when one method is better than the other.
TOPIC B: Week of May 9 - 12, 2017
IV. Class 4 - Transparency in Government, Corporations and other non-governmental organizations (e.g., labor unions, non-profit groups); How to reduce corruption.
• What steps can be taken to assure integrity in governmental and NGO functions?
• What are the elements of transparency in government?
• What steps will reduce corruptions by public officials?
A. “Transparency” defined:
• Publicly available information about governmental decisions that have been made, how they are made and who or what organizations have influenced those decisions.
• Restrictions on unfairly influencing decision-makers (e.g., anti-bribery provisions; restrictions on ex parte (one-sided) communications with judges; assuring integrity of prosecutors and judges in rendering decisions
B. For the purpose of assuring integrity in governmental and non-governmental organizations, predictability of outcome, equal access to government and non-government without regard to status.
C. Ethics rules for government officials: insuring openness in government
• What happens when public officials also continue to be in private business?
• New ethics problems and how they are being considered in the U.S.
D. Ethics Guidelines that apply to government officials: what should they be and how can they be enforced?
• What limits are appropriate? What limits interfere with free speech or other rights of government officials?
• Structural provisions (e.g., constitutional provisions, laws, regulations affecting the conduct of governmental and non-governmental organizations.
• Ethics rules: commonly accepted understandings of how governmental and non-governmental organizations should behave in seeking elective office: what is acceptable; what is not?
• Complying (or not ) with ethics rules in the U.S. after the 2016 election
o Conflicts of interest arising from ownership
o Should government officials disclose their ownership of businesses that might affect the government?
o Should they disclose their tax files? (normally private)
o What about their right of privacy?
• Publicizing deviations from accepted conduct in order to encourage compliance with the accepted standards.
• The role of the “Inspector General” in Government agencies as a method of eliminating corruption in those agencies.
Class discussion to include examples and proposed solutions
V. Class 5 - Role of the Press to Review Conduct of Government Officials
• What do we mean by a “free press”?
• What are the limitations of what the press (newspapers, radio, TV, social networks, blogs, etc.) can do in the U.S.?
• Should there be any limitations?
• Should the press be protected from law suits if untrue statements are published about an individual?
• Does it make a difference if the individual is a public official, or someone who is a well-known personality, such as someone running for office, as compared to a private individual?
• Should the press be required to name its sources for news articles (that is, the people who provide the information)?
• What is the law in the U.S. about this?
• Does it encourage a more thorough examination of the conduct of public officials if sources are not identified?
• Does it encourage unnamed sources to make untrue statements?
• What does the free press accomplish for the integrity of society?
• Would new restrictions on the freedom of the press reduce the protections that the free press provides for society?
• The current dispute in the U.S. concerning the proper role of the free press.
• Are there/should there be no limit on the press can do or say?
Examples of how the Free Press in the U.S. has brought about change and held public officials to account:
• The Watergate scandal: President Nixon’s attempt to hide the role of one party in trying to prevent another party from winning the election
• The role the free press played in causing President Nixon to resign his office.
• The “Pentagon Papers” case: the role of the newspapers in exposing the errors made by the U.S. in its conduct of the war in Vietnam
• The leaking of confidential information by Edward Snowden/Wikileaks:
• Did Snowden go too far?
• He has been accused of a crime and remained in Russia
• Pres. Trump has called him a hero and also a bad person.
• The press as “enemy” of government.
VI. Class 6- Specific Illustrations of Transparency - and the problems of hidden influence
A. Judicial Misconduct
• Bribery to achieve a decision in cases between government and individuals - e.g., criminal cases in which a judge has been paid to rule for the defendant
• Bribery to achieve a decision in cases between private parties
• How are instances of such misconduct discovered?
• The informant
• The “whistleblower”; is it proper to pay someone who discloses improper conduct to encourage the disclosure?
B. Prosecutorial Misconduct
a) What is the proper role of the prosecutor? As a member of the government, does he/she serve to carry out the wishes of the government or to implement the laws?
• How does a prosecutor retain his position if he makes decisions which are contrary to the wishes of the government appointing him?
• Term of office? Public pressure in the form of what is “acceptable” both as to the prosecutor and as to his appointing authority.
• Political influence to cause a prosecution - or to refrain from prosecution, violating the duty of the prosecutor to follow and carry out the laws.
C. Improper Influence relating to governmental decisions - e.g., administrative decisions which are common governmental activities.
e.g., secret, communications, payments, “favors” to bring about a desired decision.
• Purpose of Freedom of Information as a method of detecting, and therefore preventing such influences.
D. The role of the informant: is it all bad; is it sometimes necessary? The "leaker" of classified information? Can "leaks" help control corruption?
• Is there a role for the Informant?
• Can bribery be detected without informants?
• Can illegal agreements among competitors which raise prices be detected without informants?
• How can improper influence over the prosecutor be detected?
Case Study: A case of judicial misconduct detected in the U.S. - bribery of a federal judge; how it was detected; how it was prosecuted and what happened to the judge?
Use of the informant to detect the bribery: right or wrong? What does the informant get for making the report?
Poslední úprava: Mgr. Miroslav Sojka (04.04.2017)
Dle sylabu a instrukcí vyučujícího.